Decision Highlights Attorney-Client Privilege’s Fragility

September 16, 2009

Most clients and many lawyers do not appreciate the attorney-client privilege’s remarkable fragility. Every so often, a decision emphasizes how difficult it can be to properly create and preserve the privilege.

In Smith v. Fox, Civ. A. No. 5:08-CV-22-KSF, 2009 U.S. Dist. LEXIS 59275 (E.D. Ky. July 10, 2009), a personal injury plaintiff spoke with her lawyer in the presence of her husband. The court allowed the defendant to depose the plaintiff’s husband about those communications. As the court explained it, “[p]laintiff does not claim any attorney-client relationship with Mr. Smith,” and “does not cite any authority that would preclude discovery of communications that took place in Mr. Smith’s presence.” Id. at *9.

A careful lawyer might have arranged for a joint representation of the wife and husband, which would have protected the communications. In some states, the marital privilege might also apply. Absent these arguments, the plaintiff could not protect the communications in her husband’s presence ‑‑ providing yet another lesson about the attorney-client privilege’s very limited nature.